Khetia Drapers Ltd v Kenya Union of Commercial, Food and Allied Workers (Civil Application 43 of 2017) [2017] KECA 516 (KLR)
The bottom line
#Kenya's Court of Appeal paused a union dues order against Khetia Drapers, warning employers can't be forced into deductions that could trigger criminal liability.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable; the impugned order ex facie summarily and finally determined part of the claim (deduction of union dues) at an interlocutory stage
The court examined the impugned order and found that the deduction of trade union dues had been finally determined at an interlocutory stage, leaving only the recognition claim for trial. Grounds including lack of jurisdiction, bias and condemnation without hearing were disclosed in the draft memorandum. The court declined to comment further on the merits since a substantive appeal was already filed.
Whether the appeal would be rendered nugatory
The appeal would be rendered nugatory absent a stay, because the employer faced criminal liability under section 48(6) of the Labour Relations Act if it unlawfully deducted union dues where membership was disputed and some check-off names alleged to be forged
The trade union claimed Shs. 3,986,400 as un-deducted dues. The impugned order compelled deductions before the genuineness of membership was ascertained, and the employer alleged forgery of names on the check-off list. Given the risk of criminal liability under section 48(6) of the Labour Relations Act, the court was satisfied the nugatory limb was met.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that unless the order sought is granted the appeal would be rendered nugatory
Court orders
#- 1.Stay of execution of the order of the Employment and Labour Relations Court made on 29th March 2017 in terms of prayer 2 of the application
- 2.Stay of proceedings in the trial court for three months only to facilitate the resolution of the appeal
- 3.Costs in the appeal
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khetia Drapers Ltd v Kenya Union of Commercial, Food and Allied Workers (Civil Application 43 of 2017) [2017] KECA 516 (KLR)", Case Analysis (2017). Civil Application No. Nai. of 2017 (as extracted from Kisumu Civil Appeal No. 48 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/516/eng@2017-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.